Cartier Saada S.A. v. Bank of America, N.A.

Background

The defendant filed a motion to dismiss on April 13, 2021. Under Rule 3.F of the court’s individual practices, the plaintiffs had to notify the court and the defendant by April 27 whether they intended to file an amended pleading and when, or whether they would rely on the pleading challenged by the motion.

Order

The court warned that if the plaintiffs declined to amend while responding to a fully briefed argument in the motion to dismiss, that decision could waive their right to use the amendment process to correct defects made apparent by the defendant’s briefing. The court cited a Second Circuit decision discussing circumstances in which leave to amend may properly be denied, including undue delay, bad faith, dilatory motive, or futility.

If the plaintiffs chose to amend, the defendant could file an answer, file a new motion to dismiss, or submit a letter stating that it relied on the original motion. The order stated that it did not change the deadlines for amending, answering, or moving under the Federal Rules of Civil Procedure or the court’s local rules. The defendant was ordered to serve a copy of the order on the plaintiffs.

Disposition and Effect

This order set a procedure for responding to the motion to dismiss and warned about the possible consequences of declining to amend. It did not grant or deny the motion to dismiss and did not decide the merits of the plaintiffs’ claims.